Lonzo Sheppard v. Felix Igbinosa

The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION BE DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED (Doc. 19.) OBJECTIONS, IF ANY, DUE IN 30 DAYS

I. BACKGROUND

Lonzo Sheppard ("Plaintiff") is a state prisoner proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on September 20, 2010. (Doc. 1.) On April 25, 2012, Plaintiff filed the First Amended Complaint. (Doc. 13.) On May 4, 2012, the Court dismissed the First Amended Complaint for failure to state a claim, with leave to amend. (Doc. 14.) On May 10, 2012, Plaintiff filed the Second Amended Complaint. (Doc. 16.) On June 25, 2012, the Court dismissed the Second Amended Complaint for failure to state a claim, with leave to amend. (Doc. 18.) On July 9, 2012, Plaintiff filed the Third Amended Complaint, which is now before the Court for screening. (Doc. 19.)

II. SCREENING REQUIREMENT

The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. ' 1915A(a).

The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally Afrivolous or malicious,@ that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. ' 1915A(b)(1),(2). ANotwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal fails to state a claim upon which relief may be granted.@ 28 U.S.C. ' 1915(e)(2)(B)(ii).

A complaint is required to contain Aa short and plain statement of the claim showing that the pleader is entitled to relief . . . .@ Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but A[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.@ Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)). While a plaintiff=s allegations are taken as true, courts Aare not required to indulge unwarranted inferences,@ Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Plaintiff must set forth Asufficient factual matter, accepted as true, to >state a claim to relief that is plausible on its face.=@ Iqbal 556 U.S. at 678. While factual allegations are accepted as true, legal conclusions are not. Id.

To state a viable claim for relief, Plaintiff must set forth sufficient factual allegations to state a plausible claim for relief. Id. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Id.

Defendant Dr. Igbinosa delayed Plaintiff's hernia surgery for months, while Plaintiff was suffering great pain. Defendant Maria Koziol denied Plaintiff urgent health care and labeled his serious hernia condition as routine, even though Plaintiff complained of daily pain. Defendant Dr. Green denied Plaintiff pain medication and stopped his medication, although he knew that Plaintiff suffered great pain from his hernia condition. Defendant Dr. Smith denied Plaintiff surgery to repair his hernia, when he knew Plaintiff suffered great pain. Defendant Yates forced Plaintiff to work while suffering from his hernia condition, and Plaintiff then fell during work from a hernia injury. Defendant Bond refused to process Plaintiff's 602 appeal as an emergency appeal, even though Plaintiff claimed he was in great pain.

Plaintiff requests monetary damages and injunctive relief (surgery).

IV. PLAINTIFF'S CLAIMS

The Civil Rights Act under which this action was ...

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